How many terrorists are really left at Guantanamo, anyway?

Bad Men

How many terrorists are really left at Guantanamo, anyway?

This morning, President Barack Obama signed an executive order that will close down the prison camp at Guantanamo Bay, Cuba, within the year. He explained that he was "following through not just on a commitment I made during the campaign but an understanding that dates back to our Founding Fathers, that we are willing to observe core standards of conduct—not just when it's easy but also when it's hard."

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Everyone agrees that the order shuttering the camp is the easy part; figuring out what to do with the 245 detainees there is far tougher. Amid all the hooting and hollering you'll be hearing from around the world today, hard questions linger about how many of the detainees left at the camp are the "worst of the worst" (in the parlance of former Secretary of Defense Donald Rumsfeld) and how many simply can't be returned to sender. Are most of the detainees terrorist masterminds or just luckless wanderers? If the former is true, Sen. Sam Brownback, R-Kan., is right to be terrified that they will all be dropped off in his back yard at Leavenworth. If the latter is true, the Center for Constitutional Rights is correct in suggesting that closing the camp isn't nearly as hard as it's been made out to be. This is not a moral or political or existential question. It's an empirical one, and presumably this matter can be resolved by the "prompt and thorough" review mandated by the president's executive order.

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One thing that will not help anyone, going forward, is the kind of hyperbole we've seen from both sides, suggesting that the whole camp is teeming with assassins or choirboys. So how many truly bad guys remain at Guantanamo? Here's a start to sorting that out.

For starters, let's put to rest once and for all the cockamamie numbers about former Guantanamo detainees who have ostensibly "returned to the battlefield" after being released from the camp. This is one of those numbers that's thrown around almost drunkenly by those in favor of keeping Guantanamo Bay in operation. Justice Antonin Scalia, writing in dissent in Boumedienne v. Bush, asserted, "At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield." He cited a year-old, widely debunked report for that statistic. Last week at Eric Holder's confirmation hearings, it was Sen. John Cornyn, R.-Texas, who upped the count to 61 soldiers who had rejoined the battlefield since being let out of Gitmo.

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Sixty-one is the most recent statistic from the Bush Defense Department, which coughed up this hairball at a Jan. 13, 2009, press conference. While the DoD spokeswoman would not at the time clarify how that statistic had jumped from the previous number of 37, elaborate on the identities of these 61 men, explain where they had been identified as battlefield returnees, or even indicate how many were still alive, she was confident that "there clearly are people who are being held at Guantanamo who are still bent on doing harm to America, Americans, and our allies. … So there will have to be some solution for the likes of them."

According to a new study by Mark Denbeaux and his team at Seton Hall University School of Law, this was the Bush administration's 43rd attempt to quantify the number of detainees who have rejoined the battle. The previous 42 were no more impressive. The Seton Hall study shows that the administration's prior recidivist statistics do not even trend consistently upward—a 2007 DoD report downgraded the prior estimate of recidivists from 30 to five. The Defense Department has also been known to name as recidivists several individuals who have at no time been held at Guantanamo. Moreover, the Denbeaux study shows that the Defense Department defines speaking to reporters or publishing op-eds critical of Guantanamo as "returning to the fight." The point here is not that the data kept on the Gitmo detainees are all crap. The point is that we need to get past the tendency to cite statistical "facts" about the future dangerousness of these prisoners (and to use seemingly every available digit in the history of numbers in doing so) based on highly suspect Bush administration records.

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So how many truly hardened terrorists are currently cooling their heels at Guantanamo? We know for a fact that the 245 detainees at the camp include 17 Chinese Uighurs who, while cleared of any "enemy combatant" charges, cannot be returned safely to China and have no place else to go. Similarly, there are, as the Bush administration acknowledges, between 50 and 60 other men who have also been cleared for release with no place to go. (Some of these folks may now be accepted by Portugal, Australia, and Switzerland.)

We also know that the single most important determinant of whether a prisoner was repatriated or kept at Guantanamo is their nationality. As the Center for Constitutional Rights reports, the men from European countries were released early while almost all of the Yemenis are still there. In fact, the "luckiest" of the Yemenis remains Osama Bin Laden's driver, Salim Hamdan, who was convicted in a military commission, served out his brief sentence, and is now home with his family. Whether or not a prisoner is still at Gitmo often turns as much on international diplomacy as on future dangerousness.

We also know that among the remaining prisoners at Guantanamo there are several who clearly come under the definition of child soldiers, including Canadian Omar Khadr, who allegedly threw a grenade at an American soldier and was first taken to Guantanamo when he was 15. Khadr, we learned this week, allegedly identified, under abusive interrogation, another Canadian, Maher Arar, as a visitor to an al-Qaida safe house in Afghanistan. The problem here is that there is no dispute that Arar was in Canada at the time. Mohammed Jawad is another prisoner at Gitmo, and like Khadr he was also a child soldier (between 15 and 17; his birth date is unknown) when he threw a grenade and injured U.S. soldiers. As Glenn Greenwald chronicles here, Jawad allegedly suffered such brutal abuse and torture, his chief prosecutor resigned and is now a witness for Jawad in his habeas corpus proceeding. As Greenwald writes, the centerpiece of the government case against Jawad is a confession he " 'signed' (with his fingerprint, since he can't write his name) … and yet, it was written in a language Jawad did not speak or read and was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old."

This brings us to the nearly unthinkable question of what happens to anyone, innocent or guilty, when they have been beaten, humiliated, and held in solitary confinement for almost seven years. One could argue that even Mother Theresa might be inclined to "rejoin the battlefield" upon release from such treatment. Somehow in the repatriation of those who arrived at Gitmo relative innocents, we must now contend with the fact that some will be dangerous as a consequence of our actions, not theirs.

But all of this is still the easy part. The tough part is what happens to those detainees who really do represent a threat to this country—people like Khalid Sheikh Mohammed, with whom the Obama administration will now have to contend. The civil rights community has split over this issue in recent months, with proponents of terror courts and long-term preventative detention doing battle with supporters of regular criminal trials. That is the issue we need to contend with today, and our discussions should be informed by fact, not by fiction or fabrication. One of the most thorough studies of the Guantanamo population was undertaken by my colleague Ben Wittes for his book Law and the Long War. He cautions that there are some extremely dangerous men at the camp and also some unfortunate cannon fodder. Looking at all of them as a unified bloc is and has always been an error. So whether we are looking to answer questions about where to repatriate the last Guantanamo detainees, where to hold them until we try them, or how to try them, let's attempt to get past the undifferentiated orange jumpsuits, which tell us what they have always told us: virtually nothing at all.